Wisconsin’s laws effectively deny care to those most in need

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Milwaukee County's mental health system focuses less on continual care and more on emergency treatment than any in the nation. Despite scandals, studies and promises of reform, the system is like many of its patients: It never gets better. | Special Section

Families in Milwaukee County trying to get care for those who are a danger to themselves or others face the most restrictive mental health laws in the nation.

They were designed that way.

The laws were written by public defenders in 1976 to reform a mental health system that often warehoused patients in cruel and squalid conditions, like the kind depicted in the Academy Award winning movie of that year, “One Flew Over the Cuckoo’s Nest.”

“There was a lot of mistrust of doctors and families,” said Jon Lehrmann, chairman of the psychiatry department at the Medical College of Wisconsin. “It had been too easy to get someone behind a locked door, and the new laws were meant to correct that.”

A federal court decision in 1971 involving West Allis school teacher Alberta Lessard established a new national standard of who can be detained. Her court victory led to the requirement that a person be found to be an imminent danger to be commited.

Since then, the law has been expanded twice to create new standards that give doctors more lattitude in seeking court-ordered care for a patient. But those standards are rarely used in Milwaukee County, where all patients are assigned an attorney from the State Public Defender’s Office to fight efforts to compel care.

Changes ushered in by the Lessard decision were aimed at protecting patients’ rights, but in Milwaukee County they often serve to deny care to those who need help the most.

Hundreds of cases are dismissed every year because of legal errors, not because a patient does not need care.

In 2011, the latest full year available, the county was forced to drop 418 cases because of problems with the wording on the petitions or the failure by county doctors to file the petitions on time. Another 170 were dismissed because a witness failed to show up in court, county data show.

Lawyers for the patients make no apologies.

“It’s our job to defend that standard,” even if that means getting a sick patient released on a technicality, said Dennis Purtell, who heads the Milwaukee office of the State Public Defender. “It’s what we do.”

That firm line has led to some disastrous and absurd results.

In Milwaukee County, doctors have only 24 hours to determine if a patient needs court-ordered care.

But that rule applies even in cases where the patient is unconscious from a self-inflicted gunshot wound or otherwise unable to be examined for medical reasons. So far this year, at least 15 cases have been dropped because of this loophole.

Milwaukee County mental health administrators have tried for years to get that legal flaw changed.

“There is no higher need for us to protect someone than an individual so desperate, so alone, so inconsolable and in so much pain that they see no other option but to take their own lives,” said Jim Kubicek, deputy director of Milwaukee County’s Behavioral Health Division, testifying in 2010 before a legislative panel weighing changes to the state’s commitment laws.

At the same hearing, attorney Thomas Zander, who helped write the 1976 laws, downplayed the impact of such cases, telling the panel they were “much ado about nothing.”

Zander, now an adjunct professor at Marquette University Law School, says the law is not the problem. It is the failure to find more effective ways to get people to accept care.

“Wasting resources on involuntary hospitalization, as Milwaukee County has done forever, is a 1950’s approach that wastes money and denies mental health services to the greater number that can benefit from community-based services,” he said.

Family members, caught in the middle of the legal sparring, often watch in frustration and anguish as their relatives come to harm after refusing treatment.

“We need a new civil rights movement for patients and their families,” said Bob Graf, whose son, Peter, 38, committed suicide in 2010 after denying his illness and rejecting his parents’ pleas for him to take medication to ease his depression.

“Part of mental illnesses often is that people do not realize they are sick; yet hospitals will not accept them unless they agree to treatment,” Graf said. “What are parents to do? Wait for the adult to take his own life?

“All ill persons have rights to health care despite their delusions or types of mental illnesses.”

Lehrmann remembers the frustration he felt in trying to get help for one of his earliest patients. He asked the courts to order treatment for a patient who was deathly ill, having refused to eat for several days.

But he used the wrong initials for the hospital on the form and the case was dismissed. The patient refused any voluntary treatment.

“I could barely swallow,” Lehrmann later wrote in an article for the Jefferson Journal of Psychiatry. “No one would hear how close to death the patient had come, and it didn’t seem to matter.”

Jon Berlin, who served as medical director of Milwaukee’s Psychiatric Crisis Services for 14 years, says the law needs to be changed to make it less adversarial and more cooperative, for the sake of the patients who are being harmed by this sharp divide.

“The law should clarify that individuals in our society have both the right to refuse treatment and the right to receive it involuntarily in defined emergency situations,” he said. “Protecting one right sometimes involves temporarily denying the other.”

Here is a look at the history of Wisconsin's mental health laws and how Milwaukee County differs from the state's other 71 counties:

1971: West Allis school teacher Alberta Lessard files a federal lawsuit challenging the constitutionality of the state's mental commitment laws that allow patients to be held for up to 145 days without a hearing. A three-judge panel finds that the system must provide patients with the same protections as criminal defendants and establishes the "imminent danger" legal standard nationwide.

1976: Wisconsin updates its laws governing commitment to reflect the decision. Patients held on emergency detentions are considered the legal equivalent of incarcerated criminals. Only police can bring in an involuntary patient. To qualify for detention, a patient must meet three standards: be mentally ill or developmentally disabled; imminently dangerous; and treatable. In Milwaukee County, doctors who want to hold a patient must file a petition for emergency detention within 24 hours. Doctors in every other Wisconsin county get 72 hours to make their case.

1980: The legislature adds a fourth standard for commitment. Patients now can be ordered into treatment if they cannot satisfy their basic needs for nourishment or care, leading to the substantial probability of death or serious injury.

1995: Lawmakers add a fifth standard to the list of conditions: Patients with a history of treatment can be held if the state proves that he or she is unable to recognize the effects of illness. The standard has since been used elsewhere in the state, but has rarely been used in Milwaukee County.

1998: The "Delores M" case establishes that the clock on emergency detention orders begins ticking when a patient is brought into any facility, not just a psychiatric hospital. The ruling means Milwaukee County must drop cases against as many as 70 of the sickest patients each year - people who cannot be examined within 24 hours because they are unconscious or incapacitated from injuries suffered during suicide attempts.

2007: In an effort to cut down on the number of patients brought in on emergency detentions across the state, Gov. Jim Doyle orders that law enforcement officers get approval from their local mental health board before bringing a patient into a hospital. Milwaukee County Circuit Judge Mel Flanagan rules that the order does not apply to Milwaukee because the 24-hour rule accomplishes much of the same function.

2007: In an effort to cut down on the number of patients brought in on emergency detentions across the state, Gov. Jim Doyle orders that law enforcement officers get approval from their local mental health board before bringing a patient into a hospital. Milwaukee County Circuit Judge Mel Flanagan rules that the order does not apply to Milwaukee because the 24-hour rule accomplishes much of the same function.

2010: Milwaukee County lawyers and mental health administrators ask the nonpartisan Legislative Council, which reports to the Senate and Assembly, to recommend that lawmakers eliminate the 24-hour rule. The council does not, citing objections from patient advocates.

2013: The Legislative Council moves to correct problems with the "Delores M" case by drafting a bill that will make it clear that the time limits on an emergency detention are set only after a patient has been medically cleared. The bill was introduced in April, but has not been scheduled for a hearing.